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by Steve Vladeck, Professor at the University of Texas School of Law
Whenever special counsel Robert Mueller's investigation into Russian interference in the 2016 presidential election, and most likely to find his specific findings and recommendations, and what they mean for President Donald Trump. That's it should be.
But while Mueller is not the only person investigating illicit conduct by those in the president's orbit, his is The main inquiry into a major question that we have answered (did Russia interfere in the 2016 election?), and one that we did not (to what extent was the Trump campaign involved in this interference?).
Whatever one thinks of Mueller's investigation, we should all be able to see if there are several potential weaknesses in our existing laws.
Whether directly or indirectly, it would be more likely that Mueller's work will also be discussed. But the end of the Mueller investigation should also make a vital conversation about reforms. Whatever one thinks of Mueller's investigation, we should all be able to see if there are several potential weaknesses in our existing laws.
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Some of these potential weaknesses include ambiguities surrounding current prohibitions on foreign involvement in elections. It may also be necessary to reevaluate the precise contours of the eighty-year-old law. Ditto the Foreign Intelligence Surveillance Act (FISA), and the fact that it was used in the context of the United States of America.
One topic that such a conversation is likely to skip over, but should not, is the special counsel itself. Throughout the 21 months of Mueller's appointment, an inordinate amount of attention to the people and rules that control its investigation, rather than its substance. Mueller's appointment and investigation; whether (and under what circumstances) Mueller could be fired; Whether or not the House of Justice detained by the White House or Mueller; and the implications of various DOJ staff changes.
It has become clear that the investigation is winding down, the same conversation has shifted to Mueller 's final report – and the extent to which Congress (and, later, the public) will have access to it. Indeed, one of the central points of contention at Attorney General's William Barr's confirmation hearing was what he plans to do with the special counsel's final report. All of these are important debates, to be sure. But all of them can be clarified by statute.
First, it may be possible for the general counsel to be elected by the Attorney General for "good cause." That is already the case under the existing Department of Justice regulation, but hard-wiring it into a statute would prevent a future attorney general from revoking that regulation, or from interpreting it to impose no meaningful constraint.
Second, to give real teeth to such a good cause requirement. If it's up to the federal courts, and not just the attorney general, we can expect a future attorney general to think twice before trying to remove a special counsel without a compelling reason.
Third, to be short-cut, a number of cases, which should be made in the office of the Prosecutor General of the United States. to be supervised by the next-senior Senate-confirmed appointee within the Justice Department. Indeed, given the Matthew Whitaker saga, the Congress may well be re-elected by the Department of Justice – and the President of the Attorney General's Office.
Finally, congresses should consider the events of the Congress – and, whenever possible, the public. The current regulation only requires the House of Commons and Senate Judiciary Committees. Requiring that a redacted version of the special counselor report of the United States of America – and perhaps the rest of the body – would provide yet another mechanism for ensuring that special counsel
Strengthening a future special counsel before we know who he is or what he would be investigating would be an unusually forward-looking measure on Congress's part.
Many of these reforms have already been proposed and are included in the Special Counsel Independence and Integrity Act, which was reported to the Republican-controlled Senate Judiciary Committee in April 2018 as a bipartisan, 14-7 vote. Although some Senators objected to that bill on constitutional grounds, it was clear, in context, that the constitutional objections (which current Supreme Court precedent settles in favor of the bill) defy Trump. If the legislation is pursued with respect to future special counsels investigations, that political calculus would presumably change.
Clarifying the authority of future special counsels is perhaps the most obvious reaction to whatever comes from the Mueller investigation. And it almost certainly will not be the most significant thereto reaction. But as Georges Santayana famously wrote, those who fail to study history are doomed to repeat it. Strengthening a future special counsel before we know who he is or what he would be investigating would be an unusually forward-looking measure on Congress's part. And that's exactly why it's such a good – and important – idea.
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